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Ethics Opinions from the Bar Association of San Francisco


An attorney may represent a woman in a personal injury action against her husband and his insurance carrier, even though the attorney previously defended the husband in a Vehicle Code violation arising from the same accident. But if the attorney obtained confidential information in his prior relationship, he must obtain his former client's consent.

An attorney's married daughter was involved in an automobile accident on January 27, 1973 while an occupant of an automobile driven by her husband. She sustained injuries in the accident and her husband was cited by the authorities for a violation of the California Vehicle code.

The attorney represented his daughter's husband in connection with the Vehicle Code violation. Subsequent to such representation the opinion in Brown vs. Merlo, _Cal 3d , Sup. 106 Cal. Rptr. 388 was published which case, in the opinion of the attorney, allowed his daughter a cause of Action which was previously barred by Section 17158 of the California Vehicle Code-the so-called "Guest Statute".

It is the daughter's desire that the inquiring attorney represent her in an action against her husband for damages resulting from the accident. The attorney seeks an advisory opinion as to whether he may perform the requested legal services.

Rule 5 of the Rules of Professional Conduct adopted by the State Bar of California states:

"A member of the State Bar shall not accept employment adverse to a client or former client, without the consent of the client or former client, relating to a matter in reference to which he had obtained confidential information by reason of or in the course of his employment by such client or former client."

Rule 5 thus does not prohibit employment adverse to either a present or former client respecting matters unrelated to confidential information, with or without the consent of such client or former client. Surely in the situation here presented, the attorney could obtain the consent of his former client or decline the proffered employment.

No opinion was sought and none is given as to the propriety of undertaking the employment in these circumstances in which the decision in Brown vs. Merlo (supra) may impose a burden upon the daughter and her husband to withstand a claim of collusive action, but the issue is raised only to call it to the attention of the attorney.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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